In Cobbetts’ regulatory update seminars held in October 2009, we outlined our belief that it would not be long before a Bill proposing specific duties on directors for health and safety would be put before parliament.

On 19 January 2010, the Health and Safety (Company Director) Bill received its first reading. Its sponsor is Frank Doran, Labour MP for Aberdeen. The Bill will receive its second reading on 12 April 2010.

If passed, the Bill will amend the Health and Safety at Work Act 1974 to impose a positive duty on company directors to take all reasonable steps to ensure that a company complies with its health and safety duties as an employer. This duty will apply to directors in both the public and private sectors.

At present, company directors are not subject to such an explicit duty. There is no obligation on a director to ensure that a company discharges its health and safety responsibilities. Directors’ obligations are “secondary” – if a corporate offence is found to have been committed with a director’s “consent, connivance or neglect” then the director will be guilty of the same offence. The prosecution therefore has a two-limb test to satisfy. Two previous similar Bills (in 2003 and 2005) failed. Of course, this Bill may go the same way.

However, new legislation has been getting increasing levels of support – and not just from pressure groups. A new Bill seemed likely following the recommendations of the House of Commons Work and Pensions Committee last summer. The committee made it clear that it did not consider that the HSE’s voluntary guidance to directors was being implemented and that director awareness of health and safety was unacceptably low. In many respects, the Bill’s proposals are the next natural step following the new corporate manslaughter law and legislation increasing penalties for health and safety legislation. This Bill would complete the trilogy.

Directors may need to resign themselves to the fact that this new obligation is inevitable and start taking steps to ensure that they have measures in place to protect themselves.

We will cover this Bill in more detail in the next edition of Regulatory Matters, due out in February, and our regulatory update seminars.